ELRC122-21/22LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY


Case No. ELRC122-21/22LP

In the matter between

SAMUEL MACHABAPALA Applicant

and

LIMPOPO DEPARTMENT OF EDUCATION First Respondent

MAGDELINE FINIKA LAXA Second Respondent

ARBITRATOR: YOLISA NDZUTA

HEARD: 06 JULY 2022 & 19 AUGUST 2022

DATE OF AWARD: 12 SEPTEMBER 2022

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee

SUMMARY: Whether the Applicant has been subjected to an unfair labour practice during the recruitment process for a vacancy he expressed interest in. Whether the First Respondent committed an unfair labour practice by allowing a P 2 principal to chair the interviews for a P 4 principal vacancy.


ARBITRATION AWARD


PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down for arbitration on the 6th of July 2022 and was concluded on the 18th of August 2022.
2. The parties confirmed receipt of the notice of set down at the commencement of the proceedings, and there were no preliminary issues outstanding after the issue of joinder (of the second Respondent) which was addressed at a previous sitting. The latter was addressed and a ruling was issued which same ruling still stands.
3. The applicant (employee) was represented by M N Malumbete while the respondent (the employer) was represented by Mr N. E Nyathela a Labour Relations office of the department.


THE ISSUE IN DISPUTE

4. I am required to determine whether the first respondent committed of an unfair labour practice in terms of section 186(2) (a) of the Labour Relations Act 60 of 1995, as amended pertaining to the conduct of and internal mechanics of the interview process for the vacancy the applicant had expressed interest in wherein the second respondent was ultimately appointed.


THE BACKGROUND TO THE DISPUTE

5. In these proceedings the applicant referred an unfair labour practice dispute relating to the recruitment process more specifically the interview process undertaken to appoint the second respondent in the vacancy of principal.
6. The applicant is a deputy principal at Phagameng High School and had also acted in the capacity of principal in the same school.
7. On or about 17 August 2020 the vacancy of principal at Phagameng High School was advertised and the recruitment process followed soon thereafter. During the recruitment process undertaken, the interview committee was convened which same included a principal of another school as the chairperson.

8. The applicant raises a challenge pertaining to the composition of the interview committee in compliance with the relevant Collective Agreement.


SURVEY OF EVIDENCE AND ARGUMENT

9. Considering the nature of the dispute being unfair labour practice, the applicant bears the onus to prove that same unfair labour practice exists in his dispute in terms of section 186(2) (a) of the Labour Relations Act 60 of 1995. On account of the latter, the Applicant shall lead its case first then the Respondent shall follow in opposition.
10. The Applicant called one witness being Mr Chuene Samuel Machabaphala and filed a bundle enclosing several documents. There was no dispute raised against the contents of the bundle thus same was adopted on the basis that the documents are what they purport to be.
11. Mr Machabaphala’s evidence can be summarized as follows:
11.1 He is the Deputy Principal attached to Phagameng High School.
11.2 He has been working within department of education since 1985 and commenced within the level of principalship (as a deputy) since 2006.
11.3 The applicant had acted in the position of principal before between the years of 2014 and 2022.
11.4 His dispute was an unfair conduct pertaining to the alleged transgression by the first respondent. He testified that the interview committee for the vacancy of principal (that ultimately employed the second respondent) was not constituted properly because the chairperson of said committee was not compliant with the Limpopo Chamber ELRC Collective Agreement 2 of 2022.
11.5 He (Mr Machabaphala) read into the record the clause within the aforementioned collective agreement he relied on which directed as follows:
“Additional members of the interview committee may be co-opted by the School Governing Body on the basis of competency and skill and should hold an equivalent / higher post than the one advertised”.
11.6 He testified that Mr Mashishi (the chairperson of the interview committee in question) was not of equal value or above as the clause directs.
11.7 He also testified that during the interview process there was a conflict of interest which was not considered as such the persistence with the interviews regardless of the alleged conflict of interest constituted an unfair labour practice. He testified that the conflict of interest was between Mr Mashishi and Mr Morifi (one of the job aspirants who was interviewed). He testified that the Collective Agreement directs that wherein there was a conflict of interest the expectation is for the impugned (compromised) committee member or recruitment official to recuse themselves.
11.8 He testified that both Mr Morifi and Mr Mashishi are educators more specifically deputy principal and principal respectively at Raeleng High School.

11.9 He testified that he raised an issue to the above which was not considered until the referral (which was being arbitrated) was made.
11.10 He also testified that when he was advised by the circuit manager of the outcome of the recruitment process, he maintained his challenge as he felt aggrieved by the alleged transgression which was as a result of the alleged non-compliance with the above collective agreement.

12 The above witness was subject to cross-examination by the Respondents and the following was ascertained therefrom:
12.1 The employee had concerns about how the interview committee was constituted because he did not consider Mr Mashishi as ‘equivalent or higher’ to the vacancy that he (Mr Mashishi) was chairing the interviews for. When asked how the applicant determined his interpretation, he stated because the vacancy being contested (and interviewed for) was a P5 while Mr Mashishi was on post level P3, and the latter was a clear non-compliance with clause 5.1.1 (a) of Limpopo Chamber Collective Agreement 2 of 2002. The applicant also referred to paragraph 12.1 of the latter collective agreement which pertains to recusals, and he stated that Mr Mashshi was obliged to recuse himself when he noticed that Mr Morifi was an interviewee.
12.2 When asked about the definition of the word ‘equivalent’, he confirmed that it meant the same or similar. Correspondingly, it was put to him that considering that Mr Mashishi was a principal, the post level was not material as the best interpretation of the clause was to mean that a person who is ‘higher or equal in function’ may chair or form part of the interview committee. The applicant agreed with the latter however insisted on a strict (literal) interpretation of the clause therefore the post level was material.
12.3 When asked whether the collective agreement differentiated between post levels when referring to ‘equivalent or higher’, the applicant confirmed that no such differentiation was expressed in the collective agreement however he maintained that post level was important as it related to competency of the official. The latter inspired an analysis between Mr Mashishi as a principal and the vacancy contested which resulted in an admission that the job functions of principals are the same.

12.4 When asked about the requirements for recusal the applicant read paragraphs 12.1.1 and 12.1.2. When asked what personal interest Mr Mashishi (the chairperson) had when executing his duties during the interviews the applicant alleged that the personal interest pertains to interviewing his deputy in another vacancy to a different school. The applicant was asked whether he knew Mrs Sehlapelo who was also a member of the interview committee, the applicant confirmed. It was put to the applicant why he had not objected to her (Mrs Sehlapelo) presence considering she was a member of the SGB while also forming part of the interview committee. The applicant could not respond to the latter.

12.5 When asked how Mr Mashishi’s presence in the interview committee prejudiced him (the applicant), the applicant could not explain same. Correspondingly, the applicant was referred to paragraph 12.1.3 of the above collective agreement and asked why he didn’t ask Mr Mashishi to recuse himself prior to the commencement of the interviews and he (the applicant) explained that he was the first interviewee and had not learned of the irregularities and non-compliance in the process at the time of the interview. When asked how the presence of Mr Mashishi benefitted Mr Morifi, the applicant could not explain same.

12.6 When asked whether the applicant was the best candidate for the vacancy he couldn’t explain as when he referred to the second respondent he conceded that she was more experienced and qualified than he (the applicant) was.

13 The respondent called two (2) witnesses, one Ms Mosima Sehlapelo and Mr Mashishi, their testimony can be summarized hereinunder. Ms Sehlapelo testified as follows:
13.1 She is an educator and a member of the SGB at Phagaheng High School;

13.2 She formed part of the interview committee for the vacancy which the applicant, the second respondent and other contested.
13.3 The services of Mr Mashishi were procured because he was the most suitable person they (the other interview committee members) could Identify from the local jurisdiction. Mr Mashishi enjoyed extensive experience and was considered competent and skilful. They (the other interview committee members) consulted the relevant directory documents to ensure compliance as such satisfied themselves that procuring the services of Mr Mashishi was above board.

14 The witness was then subject to cross-examination and the following was ascertained therefrom:
14.1 There is no material difference between principals of various post levels save to confirm that a higher post level is determined by higher number of learner enrolments and a larger number of educators;

14.2 Mrs Laka (the second respondent) was (at the time of being interviewed) a principal and held a higher post level than Mr Mashishi who was chairing her interview.

15 The respondent’s second witness (Mr Mashishi) testified as follows:
15.1 He was a principal since 2004.
15.2 He held an extensive experience in interviewing parties for various vacancies as such he wanted to rectify that at the time of the interview of the applicant, the second respondent and other interviewees, his school had been upgraded from post level 3 to post level 4.
15.3 Post level plays no role in the job description of a vacancy but rather post level influences one’s salary based on the learner enrolments.

15.4 He and Mr Morifi held no personal relationship as they were colleagues as such he had no personal interest as to whomever was appointed into the vacancy.
16 The witness was then subject to cross-examination and the following was ascertained therefrom:
16.1 He confirmed that the second respondent was a principal on post level 4 before being appointed into the vacancy as principal.
16.2 When asked whether the second respondent’s appointment into a principal vacancy with post level 5 constituted a promotion, the witness stated it cannot be a promotion as the second respondent remains a principal. The witness emphasised that in principalship and education numbers (enrolment) do not affect duties as the job description of each vacancy remains regardless of the number of enrolments.

16.3 It was put to the witness that post level affect the duties and responsibility of the incumbent, the witness denied this and put it that the job description is the same.

16.4 It was put to the witness that he and Mr Morifi had a relationship that necessitated his recusal when Mr Morifi was being interviewed. The witness denied this and reiterated that he held no personal interest in the outcome of the interviews and held no personal relationship with Mr Morifi. He also reiterated that due to his competency he was invited to become a member of the interview committee.

17 After considering the viva voce evidence, I shall hereinunder summarise the parties respective verbal submissions as made at the completion of the proceedings.

17.1 The case of the applicant per its submissions can be summarised as follows:
17.1.1 The applicant was the victim of an unfair labour practice in that he was prejudiced by the respondents transgression of a collective agreement.
17.1.2 The respondent knowingly transgressed Collective Agreement 2 of 2020 (the Limpopo Chamber Collective Agreement 2 of 2020).

17.1.3 The respondent constituted an interview committee that was not compliant of the above collective agreement.
17.1.4 Furthermore one of the interview committee members was compromised and was obliged (in terms of the collective agreement) to recuse himself, however he elected not to and the said action was a further transgression of the collective agreement.
17.1.5 Any and all arguments about interpretation of the collective agreement have no basis and standing because the collective agreement must be interpreted literally therefore the argument that clause 5.1.1 (a) permits “equivalent or higher” to mean in skill, competency and job description to the exclusion of post level has no bearing as the literal and strict interpretation does not support the said argument.
17.1.6 Lastly, there was no reason for Mr Mashishi (the chairperson of the interview committee) not to recuse himself when he saw that Mr Morifi (his deputy) was an aspirant and interviewee. The persistence to interview Mr Morifi (who was his deputy principal at Raeleng High School) was a transgression of clause 12.1.1 and 12.1.2 of the collective agreement.
17.1.7 The above establish conduct that satisfies the definition of unfair labour practice in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995.
17.2 The case of the Respondent per its submissions can be summarised as follows:
17.2.1 Though the applicant’s referral is in terms of section 186 (2)(a), Collective Agreement 3 of 2016 it is integral to this dispute;
17.2.2 Clauses 31 to 36 of Collective Agreement 3 of 2016 are most applicable herein more so on the duty of the applicant in such disputes.

17.2.3 Although the applicant avers that there was a transgression with clause 5.1.1 (a) of the Limpopo Chamber Collective Agreement 2 of 2020, he cannot explain why there must be a literal interpretation of the clause. The clause directs that “Additional members of the interview committee may be co-opted by the School Governing Body on the basis of competency and skill and should hold an equivalent / higher post than the one advertised”.
17.2.4 The applicant has averred that Mr Mashishi who was a principal ought not have been co-opted to form part of the interview committee because he was on post level 3 whilst the advert was for post level 5. The applicant has not established that Mr Mashishi was not equivalent “on the basis of competency and skill to the vacancy advertised.
17.2.5 The applicant also argued that the presence of Mr Mashishi in the interview of Mr Morifi was a transgression of clause 12.1.2 of the Limpopo Chamber Collective Agreement 2 of 2020 however have not established how Mr Mashishi would have a personal interest in the outcome of the interviews or whomever is appointed to the vacancy.
17.2.6 The applicant seeks to be appointed as the Principal of Phagameng High School or twelve (12) months compensation. Clause 13 directs that the Superintendent General makes the final decision as to who must be appointed subject to a few conditions. However, he has failed to establish why he must be appointed over and above the second respondent when she (as he has conceded) is better qualified and has more experience than him. This relief is not plausible when the applicant has failed.

18 I now turn to the analysis of the submissions in relation to the applicable law.

ANALYSIS OF THE SUBMISSIONS

19. The first premise to work from is what constitutes an unfair labour practice in consideration with whether the applicant’s case in this regard.
20. Section 186(2) of the LRA defines unfair labour practice as meaning:
“any unfair act or omission that arises between an employer and an employee involving:
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee,
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
21. As argued by the applicant he relied on section 186(2)(a) thus I shall consider the submissions in this parameter.
22. My next point of departure is the Collective Agreement 3 of 2016 as it applies to disputes of this particular nature.
23. It is evident that the most critical element of this dispute is whether there was a transgression of the Limpopo Chamber Collective Agreement 2 of 2020 and whether same transgression constitutes an unfair labour practice.
24. In addressing the above, I shall refer to clause 38 of Collective Agreement 3 of 2016 which directs that my duty is to “oversee that the employer did not act unfairly towards the candidate”. Correspondingly, I shall consider the duty of the applicant (per clause 40 of the above collective agreement).
25. It is evident from the arguments and evidence that the second respondent is better qualified and experienced than the applicant thus the applicant has failed in satisfying the obligation in clause 40.
26. It is also clear that Mr Mashishi was not excluded from forming part of the interview committee as he was a principal chairing an interview to fill the vacancy of a principal, thus there isn’t a transgression of clause 5.1.1(a) of the Limpopo Chamber Collective Agreement 2 of 2020.
27. Further to the above, although a fear of bias could be plausible seeing that Mr Mashishi and Mr Morifi worked in the same school, there remained an obligation for one to establish a personal interest of Mr Mashishi towards Mr Morifi’s interest in the vacancy. An inference of bias that necessitates recusal requires one to establish a variety of requirements. The Constitutional Court (in South African Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC)) developed a test for recusal in general terms:
“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear upon the adjudication of the case, that is a mind open to persuasion by the evidence and submissions of counsel.”
28. The applicant’s case has not established that Mr Mashishi was not impartial in the execution of his duties as a member of the interview committee.
29. It is worth reminding the applicant that as dominis litis in an unfair labour practice dispute, he carried the onus to prove his case on a balance of probabilities.
30. The applicant’s arguments pertaining to interpretation of the collective agreement fails. If I was to consider the principles of substantial compliance, then I shall refer to the SCA decision in Weenen Transitional Local Council v Van Dyk which considered the application and interpretation of delegated legislation. The court places that where there is an allegation of non-compliance with legislation by an authoritative party, the said non-compliance must be clearly established (my interpretation).

31. In the premise of the above, I make the following award.

AWARD

32. The applicant’s case is dismissed.
33. The applicant has failed to establish that there was an unfair labour practice.


Yolisa Ndzuta
Panelist: ELRC